Truth, Justice and Other Illusions

SIGMUND FREUD was rarely accused of being too timid. Religious ideas are illusions, he wrote. God and the notion of an afterlife are mere products of our wishes. They are no less real for being illusory. Call them necessary fictions.

But Freud was cautious, even coy, about government and justice.

After writing about religious illusions, he had this to say about justice: “Must not the assumptions that determine our political regulations be called illusions as well? ... The author does not dispose of the means for undertaking so comprehensive a task.”

Let me help Freud along. Consider the recently released Justice Department memorandum asserting that the executive branch has the right to kill Americans without judicial review.

Released this month, it was written prior to the 2011 drone attacks that killed Anwar al-Alaki, his 16-year-old son and two other American citizens in Yemen. There was no judicial determination of guilt, not even judicial review. Senior officials decided these victims were members of al-Qaida and they were killed by remote control.

They were killed to keep you feeling safe and secure from terrorists. Many Americans are outraged. Where does the administration draw the line? If it can kill those it decides are a threat, how can a decision like that be appealed? Isn’t summary execution anathema to transparency and democratic virtues?

Such killings are a direct assault on our values. Yet most of us are prepared to tolerate the affront, even to embrace it, so long as we are not required to learn too much about it. Government killing is sort of like sex in the parental bedroom. If we don’t look or listen, we can pretend it doesn’t happen — we just want mom and dad to be happy.

I am with the American Civil Liberties Union in feeling disgust over these drone attacks. There ought to be lines beyond which government cannot go. Summarily killing us is one such line.

But to most Americans, the killings are no big deal. Why is that?

Political ideas and ideals reflect what philosophers might call instrumental values. In other words, our commitments to due process of law, to liberty or to equality are all means to other ends.

We say we cherish these ideals and that we are prepared to fight and to die for them. But rhetorical flourishes don’t pay the rent. Most folks, most of the time, are far more attuned to their interests than their ideals.

How else to explain the juxtaposition of the Declaration of Independence’s bold claim that all men are created equal with the practice of slavery? This paradox was resolved at the time by a rhetorical trick: All men are created equal, by golly; but who said blacks are men — aren’t they something less?

There will be no mass outrage about killings of Americans alleged to be affiliated with terrorists. They have declared war on us. We can distance ourselves from them, and cluck our tongues, pretending that they brought death upon themselves, and that our ideals remain sacrosanct. This is the same sort of Freudian illusion that calls death but the gateway to eternal life.

Only tyrants kill on command. Letting the administration define who it can kill without review is much like resolving the anomaly of slavery at the time of the founding by merely deciding that blacks aren’t human.

Such word games and deceit are inevitable because there is no explaining the whys and wherefores of how we come to live in groups. Always, the imperatives of the herd confront the demands of individual conscience. What makes the policemen’s wielding of a gun in the name of the law so different from the gang-bangers use of the same weapon? Only ideas and ideals.

Truth, justice, the American way? Illusions all — no less necessary and real, but illusions. We are prepared to trade our ideals for security.

But baring our teeth and snarling too loudly is frightening. We are trapped between the dark nature of our desires and the daylight need to justify ourselves in rhetoric that hides the beast within.

We cannot abide an unrestrained killing machine and call it good. Security from our enemies today becomes tomorrow’s murder of the inconvenient or merely unpopular.

A new court to review executive branch decisions to kill is necessary. The separation of powers doctrine demands no less.

It is the only idea we have to prevent our government from killing us because we pose a threat to someone’s idea of what the country requires to feel safe and secure.

About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

Disclaimer:

Nothing in this blog should be considered legal advice about your case. You need a lawyer who understands the context of your life and situation. What are offered here are merely suggested lines of inquiry you may explore with your lawyer.